IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs May 30, 2014 DOYLE S. SILLIMAN, ET AL. V. CITY OF MEMPHIS Appeal from the Chancery Court for Shelby County No. CH1102423, CH1102443, CH1102431 Walter L. Evans, Chancellor No. W2013-02858-COA-R3-CV - July 2, 2014 In this case, we are called upon to review the trial court’s decision to set aside a consent order regarding an annexation on the basis of the subsequent passage of legislation allegedly affecting the agreed-upon annexation. Because we conclude that Tennessee Code Annotated Section 6-51-122 does not apply to prohibit the annexation ordinance at issue, we reverse the trial court’s judgment and reinstate the consent order. Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and DAVID R. FARMER, J., joined. Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellant, The City of Memphis. Ricky E. Wilkins and Sharon H. Loy, Memphis, Tennessee, for the appellees, Doyle S. Silliman, Larry Sawyer, Wanda Sawyer, Harry E. Smith, III, Kathleen J. Smith, Robert E. Teutsch, Marilyn Williams, Frank G. Witherspoon, Martha C. Witherspoon. OPINION Background At some point prior to June 2006, the Defendant/Appellant City of Memphis (“the City”) enacted Ordinance No. 4513 (“the Ordinance”), thereby annexing into the City the
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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON · Smith, Larry Sawyer, Wanda Sawyer, Robert E. Teutsch, Roslyn M. Teutsch, Frank G. Witherspoon, and Martha C. Witherspoon (collectively,
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IN THE COURT OF APPEALS OF TENNESSEEAT JACKSON
Assigned on Briefs May 30, 2014
DOYLE S. SILLIMAN, ET AL. V. CITY OF MEMPHIS
Appeal from the Chancery Court for Shelby County
No. CH1102423, CH1102443, CH1102431 Walter L. Evans, Chancellor
No. W2013-02858-COA-R3-CV - July 2, 2014
In this case, we are called upon to review the trial court’s decision to set aside a
consent order regarding an annexation on the basis of the subsequent passage of legislation
allegedly affecting the agreed-upon annexation. Because we conclude that Tennessee Code
Annotated Section 6-51-122 does not apply to prohibit the annexation ordinance at issue, we
reverse the trial court’s judgment and reinstate the consent order.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Reversed
and Remanded
J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,
W.S., and DAVID R. FARMER, J., joined.
Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellant, The City of
Memphis.
Ricky E. Wilkins and Sharon H. Loy, Memphis, Tennessee, for the appellees, Doyle S.
Silliman, Larry Sawyer, Wanda Sawyer, Harry E. Smith, III, Kathleen J. Smith, Robert E.
Teutsch, Marilyn Williams, Frank G. Witherspoon, Martha C. Witherspoon.
OPINION
Background
At some point prior to June 2006, the Defendant/Appellant City of Memphis (“the
City”) enacted Ordinance No. 4513 (“the Ordinance”), thereby annexing into the City the
property described in the Ordinance, commonly known as the Southwind Annexation Area.
Plaintiffs/Appellees Doyle S. Silliman, Marilyn Williams, Harry E. Smith, III, Kathleen J.
Smith, Larry Sawyer, Wanda Sawyer, Robert E. Teutsch, Roslyn M. Teutsch, Frank G.
Witherspoon, and Martha C. Witherspoon (collectively, “Appellees”), on behalf of
themselves and other similarly situated property owners, filed three separate quo warranto1
actions challenging the legality and reasonableness of the annexation pursuant to Tennessee
Code Annotated Section 6-51-103. The lawsuits were later consolidated pursuant to
Tennessee Code Annotated Section 6-51-103(d). 2
On June 8, 2006, Appellees and the City entered into a consent order, captioned
“Amended Consent Final Judgment,” which allowed the annexation of the Southwind
Annexation Area to move forward. The consent order stated that “[w]ithin the time frame
established [herein], the validity of Ordinance No. 4513 is sustained. To determine the
effective dates of the annexation, the parties divided the area contained in the Southwind
Annexation Area into five subsections and provided the effective annexation dates for each
area. Specifically at issue in this case were the areas known as “B1 and B2.” The consent
order indicates that the annexation would occur on December 31, 2013. In addition, the
consent order specifically includes terms that the parties could not appeal the consent order,
and that the order was a final judgment disposing of all matters in dispute.
Several years passed. On May 16, 2013, the Tennessee General Assembly passed new
legislation , which appeared to establish an annexation moratorium preventing municipalities
from extending their corporate limits by means of annexation by ordinance from April 15,
2013 through May 15, 2014. See generally Tenn. Code Ann.§ 6-51-122 (including certain
exceptions not pled in this case). Thereafter, on December 19, 2013, less than two weeks
from when the annexation was to become effective, the Appellees filed a motion captioned
“Combined Petition and Memorandum in Support of Injunctive Relief and Relief from
Amended Consent Final Judgment.” In their motion, which concerned only the areas known
as B1 and B2, the Appellees asked the trial court to set aside the consent order allowing the
annexation of these areas, which annexation was to occur on December 31, 2013. As the
The appropriate method to challenge the reasonableness and necessity of an annexation1
ordinance is through a timely filed quo warranto action. See Town of Huntsville v. Scott County, 269S.W.3d 57, 61 & n. 5 (Tenn. Ct. App. 2008). The term “quo warranto” is Latin for “by what authority.”Bryan A. Garner, A Modern Legal Dictionary 731 (2d ed. 1995) (noting that a quo warranto proceedingis “generally used to inquire into the authority by which a public office is held or franchise isclaimed”).
Tennessee Code Annotated Section 6-51-103(d) provides, in pertinent part: “If more than one2
(1) suit is filed, all of them shall be consolidated and tried as one (1) in the first court of appropriatejurisdiction in which suit is filed.”
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ground for their petition, Appellees relied upon Rule 60.02 of the Tennessee Rules of Civil
Procedure, arguing that the General Assembly’s intervening enactment of Tennessee Code
Annotated Section 6-51-122 prevented the City from annexing any property by ordinance
until after May 15, 2014. The Appellees also asked that the trial court enter an injunction
preventing the City from annexing the subject property until May 16, 2014. The City filed
a response denying that the Appellees were entitled to relief.
On December 23, 2013, the trial court granted the Appellees’ motion to set aside the
consent judgment, as well as their request for an injunction preventing the City from
annexing the subject property until the expiration of the statutory moratorium. On the same
day, the City filed a motion for a stay pending appeal, which was denied by the trial court.
The City subsequently filed its notice of appeal to this Court. 34
Issues Presented
The City raises several issues for review, which are taken, and slightly altered, from its brief:
1. Whether the trial court erred by granting Appellees relief
from the Amended Consent Final Judgment entered June
8, 2006 pursuant to Rule 60.02?
2. Whether the provisions of Tennessee Code Annotated
Section 6-51-122 preclude implementation of the City’s
Annexation Ordinance No. 4513 on December 31, 2013
as provided in the June 8, 2006 Amended Consent Final
Judgment?
3. Whether the Tennessee Constitution’s prohibition against
Initially, on December 23, 2013, the City filed an application for an extraordinary appeal 3
with this Court pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. The City specificallynoted that it was unsure as to whether the trial court’s order constituted a final judgment pursuant to Rule3 of the Tennessee Rules of Appellate Procedure. On January 6, 2014, this Court denied the application forextraordinary appeal on the basis that “Applicant concedes that the order appealed is a final judgment andshould be appealed pursuant to Rule 3 . . . .” The City subsequently filed its notice of appeal to this Courtpursuant to Rule 3. We have independently reviewed the record and agree with the City that the trial court’sDecember 23, 2013 order was a final, appealable judgment. See Tenn. R. App. P. 13(b) (“The appellate courtshall also consider whether the trial and appellate court have jurisdiction over the subject matter, whetheror not presented for review[.]”). Thus, we consider this appeal pursuant to Rule 3.
Pending appeal, the City also sought a stay of the trial court’s order pending appeal from 4
this Court. This Court denied the request by order of January 31, 2014.
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section 6-51-122 from impairing the vested rights of the
City created by the June 8, 2006 Amended Consent Final
Judgment?
4. Whether Appellees are entitled to a modification of the
Amended Consent Final Judgment based on the
subsequent enactment of Tennessee Code Annotated
Section 6-51-122?
5. Whether the trial court erred in granting Appellees’
request for injunctive relief?
In the posture of appellee, the Appellees also raise an issue as to the mootness of this appeal.
As we perceive it, however, there are three issues in this case:
1. Whether the mootness doctrine demands dismissal of this appeal?
2. Whether the trial court had subject matter jurisdiction to set aside the final consent
order?
3. Whether the trial court abused its discretion in setting aside the final consent order?
Analysis
Subject Matter Jurisdiction
We begin with the Appellees’ assertion that this Court lacks subject matter jurisdiction
over this appeal because the controversy has been rendered moot. Specifically, the Appellees
argue that because the trial court’s injunction only prevents the City from attempting to annex
the Southwind Annexation Area until May 16, 2014, a date which had passed at the time this
case was submitted to the Court on briefs, there is no remaining impediment to the
annexation of the subject property. Because the City is no longer enjoined from taking steps
to annex the Southwind Annexation Area by ordinance, the Appellees argue that this Court
can offer no relief to the City to which they are not already entitled.
Our Supreme Court recently discussed the intertwining issues of justiciability and
mootness:
This Court must first consider questions pertaining to
justiciability before proceeding to the merits of any remaining
claims. See UT Med. Grp., Inc. v. Vogt, 235 S.W.3d 110, 119
(Tenn. 2007) (noting that justiciability is a threshold inquiry).
The role of our courts is limited to deciding issues that qualify
as justiciable, meaning issues that place some real interest in
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dispute, Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 838
(Tenn. 2008), and are not merely “theoretical or abstract,”
Norma Faye Pyles Lynch Family Purpose LLC v. PutnamCnty., 301 S .W.3d 196, 203 (Tenn. 2009). A justiciable issue is
one that gives rise to “a genuine, existing controversy requiring
the adjudication of presently existing rights.” Vogt, 235 S.W.3d
at 119.
* * *
To be justiciable, an issue must be cognizable not only at
the inception of the litigation but also throughout its pendency.
Norma Faye Pyles Lynch Family Purpose LLC, 301 S.W.3d at
203–04. An issue becomes moot if an event occurring after the
commencement of the case extinguishes the legal controversy
attached to the issue, Lufkin v. Bd. of Prof’l Responsibility, 336
S.W.3d 223, 226 (Tenn. 2011), or otherwise prevents the
prevailing party from receiving meaningful relief in the event of
a favorable judgment, see Knott v. Stewart Cnty., 207 S.W.2d
337, 338 (Tenn. 1948); Cnty. of Shelby v. McWherter, 936
S.W.2d 923, 931 (Tenn. Ct. App. 1996). This Court has
recognized a limited number of exceptional circumstances that
make it appropriate to address the merits of an issue
notwithstanding its ostensible mootness: (1) when the issue is of
great public importance or affects the administration of justice;
(2) when the challenged conduct is capable of repetition and
evades judicial review; (3) when the primary dispute is moot but
collateral consequences persist; and (4) when a litigant has
voluntarily ceased the challenged conduct. Lufkin, 336 S.W.3d
at 226 n.5 (citing Norma Faye Pyles Lynch Family Purpose
LLC, 301 S.W.3d at 204).
City of Memphis v. Hargett, 414 S.W .3d 88, 96 (Tenn. 2013). Thus, the Appellees argue
that the City’s appeal is moot because this Court can offer the City no “meaningful relief in
the event of a favorable judgment.” Id. (citing Knott, 207 S.W.2d at 338).
The City, in contrast, argues that this case is not moot, as the City would receive
“meaningful relief in the event of a favorable judgment.” Id. (citing Knott, 207 S.W.2d at
338). Specifically, the City argues that if this Court were to determine either that the trial
court did not have the power to alter the terms of the consent judgment, or that the trial court
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abused its discretion in enjoining the City from proceeding to annex the Southwind
Annexation Area, the prior consent judgment, in which the annexation was to take place on
December 31, 2013, would be reinstated. Because the consent judgment contains no
requirement that the City take any affirmative action to effectuate the annexation, the City
asserts that “vacating the trial court’s recent order [enjoining the annexation] will
automatically implement the December 31, 2013 annexation of areas B1 and B2 of the
Southwind Annexation Area pursuant to the June 8, 2006 [c]onsent [j]udgement.” If the
consent judgment is reinstated, including the December 31, 2013 effective date of the
annexation, the City asserts that it would be entitled to collect property taxes from the subject
property for the entire fiscal year of 2014. If, however, the City is only entitled to annex areas
B1 and B2 of the Southwind Annexation Area after May 16, 2014, then the City would not
be allowed to collect property taxes for the 2014 fiscal year. See Tenn. Code Ann. § 67-5-
504(c) (“Any annexing municipality that makes assessments of taxes shall only assess the tax
on real property within the annexed territory if the annexation takes effect prior to January
1 of the year in which the assessment is made”).
To support its argument that to reverse or vacate the trial court’s order setting aside
the consent judgment would be to reinstate the June 8, 2006 consent judgment, the City relies
on this Court’s opinion in West v. Luna, No. 01A01-9707-CH-00281, 1998 WL 467106
(Tenn. Ct. App. Aug. 12, 1998). In Luna, the defendant operated a dirt race track in Lincoln
County. Six years prior to the instant litigation, the track had been enjoined from operating
at a noise level that amounted to a nuisance. Id. at *1. When the track was sold to a new
owner, the track’s neighbors filed another lawsuit to enjoin the track’s new owner from
conducting any stock car races on the property because of their belief that the noise would
create nuisance. Id. at *1–*2. The trial court agreed with the neighbors and enjoined the
track’s new owner from conducting races of any sort on the property. Id. at *2. This Court
vacated the second injunction on the ground that it was overly broad. On appeal, however,
the neighbors argued that the vacatur would result in no limits on the amount of noise
emanating from the track. Id. at *8. To the contrary, the Court, led by Judge, now Justice,
William C. Koch, held that the vacatur of the second injunction had the effect of reinstating
the initial injunction:
Our decision to vacate the August 1996 order does not
leave [the track’s new owner] to conduct stock car races as he
pleases. To the contrary, vacating the August 1996 order has the
legal effect of reinstating the May 1982 order that enjoins the
track operators from operating the track “until such time as . . .
[they] can and will operate same where the noise level will not
be a nuisance to the plaintiffs.” Thus, [the track’s new owner],
remains enjoined from operating the track in a way that causes
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a nuisance to the track’s neighbors.
Id. The Court then remanded the matter to the trial court to determine some “objective,
well-defined noise levels suitable for the locality and the character of the surrounding
neighborhood as well as the time of day when the races will be conducted” upon which the
question of nuisance could be judged. Id. at *9.
The City argues that, based upon the holding in Luna, the effect of any decision in
this Court reversing or vacating the trial court’s decision to set aside the consent order will
result in the reinstatement of the June 8, 2006 consent judgment. Because the June 8, 2006
consent judgment provides that annexation will occur on December 31, 2013, with no
intervening action required by any party, the City argues that reinstatement of the consent
judgment will allow the City to collect property taxes from areas B1 and B2 of the Southwind
Annexation area for the 2014 fiscal year, pursuant to Tennessee Code Annotated Section 67-
5-504(c). Thus, the City argues that this Court can offer the City meaningful relief in the
event of a favorable judgment.
We agree with the City regarding the effect of a judgment in its favor. As explained
in Luna, were this Court to vacate or reverse the trial court’s decision setting aside the June
8, 2006 consent order, the effect would be to reinstate the consent order based upon its prior
terms. See id. at *8. Other courts have indicated agreement with the proposition that vacatur
or reversal of a subsequent order may result in reinstatement of the earlier status quo. See
Lenoir v. Hardin’s-Sysco Food Services, LLC, No. W2012-02386-COA-R3-CV, 2013 WL
5884661, at *5 (Tenn. Ct. App. Oct. 31, 2013) (concerning an order of an administrative law
judge); Holley v. Blackett, No. W2011-02115-COA-R3-CV, 2012 WL 4799053, at *5
(Tenn. Ct. App. Oct. 10, 2012) (reversing the trial court’s order of dismissal and expressly
reinstating a prior order); Forbes v. Forbes, No. W2005-00694-COA-R3-CV, 2005 WL
2416660, at *7 (Tenn. Ct. App. Sept. 30, 2005) (reversing the trial court’s order construing
the parties’ marital dissolution agreements and expressly reinstating a previous order);
Bilbrey v. Worley, 165 S.W.3d 607, 622–23 (Tenn. Ct. App. 2004) (reversing the trial court’s
final judgment and expressly reinstating the trial court’s initial judgment); see also General
Medicine, P.C. v. Horizon/CMS Health Care Corp., 475 Fed.Appx. 65, 76 (6th Cir. 2012)
(reversing the district court’s decision to set aside a consent judgment and expressly
reinstating the consent judgment). Because a reversal or vacatur of the trial court’s decision
to set aside the June 8, 2006 consent judgment will have the effect of reinstating that
judgment, we cannot agree with the Appellees that this action can provide the City no
meaningful appellate review. The Appellees’ request that we dismiss this appeal for lack of
subject matter jurisdiction is, therefore, denied. Accordingly, we go on to consider the
substantive issues raised in this appeal.
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Rule 60.02
The substantive issues in this case concern the Appellees’ entitlement to relief
pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. Rule 60.02 provides, in
pertinent part:
On motion and upon such terms as are just, the court may relieve
a party or the party’s legal representative from a final judgment,
order or proceeding for the following reasons: (1) mistake,
inadvertence, surprise or excusable neglect; (2) fraud (whether
h e re to fo re denom ina ted in t r in s ic o r e x t r in s ic ) ,
misrepresentation, or other misconduct of an adverse party; (3)
the judgment is void; (4) the judgment has been satisfied,
released or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer
equitable that a judgment should have prospective application;
or (5) any other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable time,
and for reasons (1) and (2) not more than one year after the
judgment, order or proceeding was entered or taken.
We begin with a brief explanation of the law in Tennessee concerning Rule 60.02, as recently
explained by our Supreme Court:
[W]e have characterized relief under Rule 60.02 as an
“exceptional remedy,” Nails v. Aetna Ins. Co., 834 S.W.2d 289,
294 (Tenn. 1992), “designed to strike a proper balance between
the competing principles of finality and justice,” Jerkins v.
(1988)). Accordingly, the power of municipalities to annex areas by ordinance is granted by
the Tennessee General Assembly and governed exclusively by statute.
Here, the City, pursuant to the power granted to it from the General Assembly, sought
to annex the Southwind Annexation area pursuant to an ordinance. The City and the
Appellees entered into a consent order allowing the annexation to proceed, predicated on the
fact that the City had power to annex the area by ordinance pursuant to authority granted to
the City by the General Assembly. In 2013, after the entry of the consent judgment allowing
the annexation to proceed, but before the annexation was to take place, the General Assembly
saw fit to limit the power of municipalities to annex adjoining property by ordinance. See
2013 Tenn. Pub. Laws Ch. 441 (S.B. 279). The Appellees argue that this change removed
the City’s authority to annex any property during the relevant time period. Although the City
denies that Tennessee Code Annotated Section 6-51-122 should be interpreted to preclude
the annexation at issue in this case, there can be no dispute that the enactment of Tennessee
Code Annotated Section 6-51-122 constitutes a significant change in the law with regard to
Article XI, section 9 of the Tennessee Constitution provides, in relevant part: “ The General5
Assembly shall by general law provide the exclusive methods by which municipalities may be created,merged, consolidated and dissolved and by which municipal boundaries may be altered.”
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a municipality’s power to annex property by ordinance. The change at issue in this case is not
merely a change in how a statute is interpreted by the court, but presents a substantive and
significant alteration in the annexation power of municipalities. Tennessee courts have held
that the passage of subsequent legislation may, in some circumstances, be sufficient to justify
setting aside a consent order. See White v. Armstrong, No. 01A01-9712-JV-00735, 1999 WL
33085, at *3 (Tenn. Ct. App. Jan. 27, 1999) (noting that a change in circumstances that might
warrant modification of a judgment includes “passage of subsequent legislation”) (citing
Protectoseal Co. v. Barancik, 23 F.3d 1184, 1187 (7th Cir. 1994)); Richards v. Read, No.
01A01-9708-PB-00450, 1999 WL 820823, at *8 (Tenn. Ct. App. July 27, 1999) (same).
Federal courts have also indicated that significant change in the substantive law upon which
a judgment is predicated may be sufficient to justify relief from a judgment. See Horne v.
Flores, 557 U.S. 433, 447, 129 S.Ct. 2579 (2009) (allowing a party to seek relief from a
judgment or order if “‘a significant change either in factual conditions or in law’ renders
continued enforcement ‘detrimental to the public interest’”) (quoting Rufo v. Inmates of
Suffolk County Jail, 502 U.S. 367, 384, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992)); John B.
v. Emkes, 710 F.3d 394 (6th Cir. 2013) (noting that “a court may vacate a consent decree if,
among other things, “a significant change . . . in law renders [its] continued enforcement
detrimental”) (quoting Northridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 613
(6th Cir. 2011)). Again, the United States Supreme Court has explained the rationale for this
rule: “The court must be free to continue to further the objectives of that Act when its
provisions are amended. The parties have no power to require of the court continuing
enforcement of rights the statute no longer gives.” System Federation No. 91, 364 U.S. at
651–52. Accordingly, we decline to adopt a rule wherein the court is deprived from
considering a motion pursuant to Rule 60.02 when the basis for the motion is the subsequent
passage of legislation which may significantly affect the parties’ respective rights and
prospective obligations pursuant to the final order of the court.
Our decision that the Appellees could petition the trial court for relief from the
consent judgment based upon the intervening passage of legislation does not, ipso facto, lead
to the conclusion that the trial court correctly exercised its discretion in enjoining the
annexation based upon its interpretation of Tennessee Code Annotated Section 6-51-122.
Accordingly, we turn to that question.
Tennessee Code Annotated Section 6-51-122
The City next argues that the trial court erred in setting aside the June 8, 2006 consent
order based upon its interpretation of Tennessee Code Annotated Section 6-51-122.
According to the City, the plain language of Tennessee Code Annotated Section 6-51-122
does not prevent the City from annexing areas B1 and B2 of the Southwind Annexation Area.
Specifically, the City argues that its Ordinance became effective prior to the annexation
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moratorium established in Tennessee Code Annotated Section 6-51-122, and, therefore, the
annexation moratorium does not prevent the annexation at issue. In contrast, the Appellees
argue that the trial court correctly concluded that Tennessee Code Annotated Section 6-51-
122 prevents the annexation of areas B1 and B2 of the Southwind Annexation Area, which
annexation was to become effective during the moratorium established by the statute.
This issue involves the interpretation of Tennessee Code Annotated Section 6-51-122.
Although we review the trial court’s overall decision to grant Rule 60.02 relief under the
abuse of discretion standard, see Beason v. Beason, 120 S.W.3d 833 (Tenn. Ct. App. 2003),
this specific issue involves the proper interpretation to be given to a statute. Consequently,
we shall review the trial court’s interpretation of Tennessee Code Annotated Section 6-51-
122 de novo, with no presumption of correctness. See Pickard v. Tennessee Water Quality
Control Bd., 424 S.W.3d 511, 518 (Tenn. 2013) (citing Myers v. AMISUB (SFH), Inc., 382
S.W.3d 300, 308 (Tenn. 2012)). In determining the proper interpretation to be given to a
statute, we must employ the rules of statutory construction. The Tennessee Supreme Court
recently reiterated the “familiar rules,” stating:
Our role is to determine legislative intent and to effectuate
legislative purpose. [Lee Med., Inc. v. Beecher, 312 S.W.3d
515, 526 (Tenn. 2010)]; In re Estate of Tanner, 295 S.W.3d
610, 613 (Tenn. 2009). The text of the statute is of primary
importance, and the words must be given their natural and
ordinary meaning in the context in which they appear and in
light of the statute’s general purpose. See Lee Med., Inc., 312
S.W.3d at 526; Hayes v. Gibson Cnty., 288 S.W.3d 334, 337
(Tenn. 2009); Waldschmidt v. Reassure Am. Life Ins. Co., 271
S.W.3d 173, 176 (Tenn. 2008). When the language of the statute
is clear and unambiguous, courts look no farther to ascertain its
meaning. See Lee Med., Inc., 312 S.W.3d at 527; Green v.
Green, 293 S.W.3d 493, 507 (Tenn. 2009). When necessary to
resolve a statutory ambiguity or conflict, courts may consider
matters beyond the statutory text, including public policy,
historical facts relevant to the enactment of the statute, the
background and purpose of the statute, and the entire statutory
scheme. Lee Med., Inc., 312 S.W.3d at 527–28. However, these
non-codified external sources “cannot provide a basis for
departing from clear codified statutory provisions.” Id. at 528.
Mills v. Fulmarque, 360 S.W.3d 362, 368 (Tenn. 2012). Due to the relatively recent passage
of Tennessee Code Annotated Section 6-51-122, no courts of this State have been called
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upon to interpret its requirements. As such, the applicability and interpretation of Tennessee6
Code Annotated Section 6-51-122 to the facts of this case are a question of first impression
in this Court.
Thus, we begin our discussion with the language of Tennessee Code Annotated
Section 6-51-122, as it existed in 2013, when this case was initiated, which states, in7
relevant part:
(a)(1)(A) Notwithstanding this part or any other law to the
contrary, from April 15, 2013, through May 15, 2014, no
municipality shall extend its corporate limits by means of
Although no courts have yet considered Tennessee Code Annotated Section 6-51-122, the6
Tennessee Attorney General recently released an opinion regarding the applicability of the annexationmoratorium in facts substantially similar to those presented in this case. See Tenn. Op. Atty. Gen. No.13-71(2014). The Attorney General’s Opinion is discussed in detail, infra.
We note that Tennessee Code Annotated Section 6-51-122 was recently amended. See 20147
Tenn. Laws Pub. Ch. 707 (S.B. 2464), § 1 (eff. April 15, 2014). The new version of Tennessee CodeAnnotated Section 6-51-122 provides, in pertinent part:
(a) Notwithstanding any provision of this part or any other law to thecontrary:
(1)(A) From April 15, 2013, through the effective date of Section 1 of thisact [i.e., April 15, 2014], no municipality shall extend its corporate limitsby means of annexation by ordinance upon the municipality’s owninitiative, pursuant to § 6-51-102, in order to annex territory being usedprimarily for residential or agricultural purposes; and no such ordinance toannex such territory shall become operative during such period, except asotherwise permitted pursuant to subdivision (a)(1)(B);
(B) If, prior to April 15, 2013, a municipality formally initiated anannexation ordinance restricted by subdivision (a)(1)(A); and if themunicipality would suffer substantial and demonstrable financialinjury if such ordinance does not become operative prior to theeffective date of Section 1 of this act; then, upon petition by themunicipality submitted prior to the effective date of Section 1 ofthis act, the county legislative body may, by a majority vote of itsmembership, waive the restrictions imposed on such ordinance bysubdivision (a)(1)(A); . . . .
2014 Tenn. Laws Pub. Ch. 707 (S.B. 2464), § 1. The changes do not materially effect our discussion in this
case, except as discussed in detail, infra. Thus, we refer to the 2013 version of Tennessee Code AnnotatedSection 6-51-122 throughout this Opinion.
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annexation by ordinance upon the municipality’s own initiative,
pursuant to § 6-51-102, in order to annex territory being used
primarily for residential or agricultural purposes; and, except as
otherwise permitted pursuant to subdivision (a)(2), no such
ordinance to annex such territory shall become operative during
such period.
(B) As used in this subsection (a), “municipality” does
not include any county having a metropolitan form of
government.
(2) If, prior to April 15, 2013, a municipality formally initiated
an annexation ordinance delayed by subdivision (a)(1)(A); and
if the municipality would suffer substantial and demonstrable
financial injury if such ordinance does not become operative
prior to May 15, 2014; then, upon petition by the municipality,
the county legislative body may, by a majority vote of its
membership, waive the restrictions imposed on such ordinance
by subdivision (a)(1)(A).
Tenn. Code Ann. § 6-51-122 (2013). The annexation at issue in this case was to take place
on December 31, 2013. The Appellees argue that this fact places the annexation squarely
within the annexation moratorium outlined above. In contrast, the City argues that the above
statute does not place a moratorium on annexations that take place between April 15, 2013
through May 15, 2014, but only on annexation ordinances that become operative between
those dates. The City argues that because the applicable Ordinance became operative on the
date of the entry of the June 8, 2006 consent order, the annexation moratorium does not
apply. Thus, the City argues that proper interpretation of the above statute rests on the
distinction between the operative date of the annexation and the operative date of the
annexation ordinance.
We agree. The Tennessee Supreme Court has previously held that there is a distinction
between the operative date of an ordinance and the effective date of an annexation. See
Highwoods Properties, Inc. v. City of Memphis, 297 S.W.3d 695, 711–12 (Tenn. 2009). In
Highwoods Properties, the plaintiff landowners filed a declaratory judgment action to set
aside a consent judgment entered in a quo warranto action to which the plaintiffs were not
parties on the basis that the consent judgment was an impermissible amendment of an8
Here, there is no dispute that the Appellees were plaintiffs in a timely-filed quo warranto8
action.
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annexation ordinance. Id. at 697. The ordinance at issue specifically stated that the
annexation would be divided into two stages, one taking place in 2006, and the remainder
of the annexation taking place in 2013. The trial court dismissed the declaratory judgment
action on the basis that the plaintiffs failed to bring their claim in a timely quo warranto
action, which decision was affirmed by the Tennessee Supreme Court. Specifically, the Court
held that a plaintiff challenging an annexation must bring a quo warranto action prior to the
operative date of the ordinance, rather than the date the proposed annexation is to take place.
Id. at 711–12.
In reaching its decision, our Supreme Court discussed the distinction between the
operative date of an annexation ordinance and the effective date of the annexation. First, the
Court looked to the relevant statutory language governing quo warranto actions, as adopted
by the Tennessee General Assembly. Specifically, the Supreme Court considered the plain
language of Tennessee Code Annotated Section 6-51-103(d)(1), the statute governing quo
warranto actions, which provides, in pertinent part:
In the absence of such finding [in a timely filed quo warranto
action, that an annexation ordinance is unreasonable], an order
shall be issued sustaining the validity of such ordinance, which
shall then become operative thirty-one (31) days after
judgment is entered unless an abrogating appeal has been taken
from the judgment, or unless the presiding court grants the
municipality’s petition to defer the effective date pursuant to
subdivision (d)(2).
Tenn. Code Ann. § 6-51-103(d)(1) (emphasis added). Our Supreme Court interpreted the
above language as indicating that regardless of the effective date of the actual annexation,
an annexation ordinance becomes operative thirty-one days after an order is entered
sustaining the ordinance in a quo warranto action, where a timely quo warranto action has
been filed. As explained by the Tennessee Supreme Court:
Th[e plaintiffs’] argument [that their lawsuit was timely
filed] rests on a faulty assumption that there is no difference
between the effective date of the ordinance and the effective
date of the annexation. In our view, although the entire
ordinance became operative thirty-one days after the entry of the
consent judgment, the very terms of that judgment also properly
delay the annexation of Area B until a later date. See [State ex
rel.] Bastnagel [v. City of Memphis], 457 S.W.2d 532,] 534–35
[(Tenn. 1970)] (holding that the date on which an annexation
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ordinance becomes operative is not necessarily “the actual date
of annexation”). The actual date of annexation for Area B has
been merely postponed by a term contained within the judgment
approved by the trial court as reasonable under the
circumstances.
Highwoods Properties, 297 S.W.3d 695, 711–12. Thus, the operative date of an ordinance,
which has been subject to a quo warranto action, is thirty-one days from the entry of an
order sustaining the ordinance. Id.
To support its interpretation of Tennessee Code Annotated Section 6-51-103(d)(1),
the Highwoods Properties Court cites an earlier Tennessee Supreme Court case concerning
annexation by ordinance, State ex rel. Bastnagel v. City of Memphis, 457 S.W.2d 532 (Tenn.
1970). In Bastnagel, the plaintiffs appealed the trial court’s dismissal of their quo warranto
action on the ground that the action was not timely filed based upon a statute that indicated
that an annexation ordinance would become operative thirty days after final passage. Id. at
533 (citing Tenn. Code Ann. § 6-309 (1968)). The plaintiffs had filed their action prior to9
the actual date of the annexation pursuant to the ordinance, but more than thirty days after
the final passage of the ordinance. The Bastnagel Court considered a substantially similar
quo warranto statute which provided that an annexation ordinance becomes “operative”
thirty days after the passage of the ordinance. Id. at 534. The plaintiffs argued, however, that
the statute does not operate as a bar on a quo warranto action filed more than thirty days
from the passage of the ordinance, when the action is filed prior to the actual date of the
annexation. The Tennessee Supreme Court held that the “operative” language in the quo
warranto statute placed a time limit on the availability of quo warranto actions by aggrieved
land owners based upon the final passage of the ordinance, rather than the actual date of the
annexation:
[W]e think the language of [the quo warranto statute] “provided
said ordinance shall not become operative until thirty days after
final passage” was written into this statute for the sole purpose
of giving aggrieved landowners a reasonable time to further
Tennessee Code Annotated Section 6–309 (1968) provided that an annexation “ordinance shall9
not become operative until thirty (30) days after final passage thereof.” Although the law has been recodifiedat Tennessee Code Annotated Section 6-51-102, the time period for when an ordinance becomes operativewhen no quo warranto action has been filed remains the same in this case. See Tenn. Code Ann. § 6-51-102(a)(1) (“[T]he ordinance shall not become operative until thirty (30) days after final passage thereof.”); see also Cochran v. City of Memphis, No. W2012-01346-COA-R3-CV, 2013 WL 1122803, at *3 (Tenn. Ct.App. March 19, 2013) (no perm. app. filed) (“The ordinance becomes operative thirty days after finalpassage, as aggrieved property owners may contest annexation during this thirty-day period.”)).
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pursue their objections in the courts and by this language the
Legislature intended the aggrieved landowners to have this thirty
days and to limit their time to this thirty days.
Id. at 535. Thus, the Tennessee Supreme Court held that the operative date of an annexation
ordinance is separate and distinct from the effective date of the annexation, and that the
operative date of the ordinance is the crucial date for purposes of the timeliness of a quo
warranto action. See also Cochran v. City of Memphis, No. W2012-01346-COA-R3-CV,
2013 WL 1122803, at *3 (Tenn. Ct. App. March 19, 2013) (no perm. app. filed) (“The
[annexation] ordinance becomes operative thirty days after final passage, as aggrieved
property owners may contest annexation during this thirty-day period.”); Town of Huntsville
v. Scott County, 269 S.W.3d 57, 61 & n.5 (Tenn. Ct. App. 2008) (noting that where a timely
quo warranto action is filed, the annexation ordinance becomes “operative” thirty-one days
from when “the ordinance is upheld as valid by the presiding court”); City of Knoxville v.
Knox County, No. M2006-00916-COA-R3-CV, 2008 WL 465265, at *3 (Tenn. Ct. App.
Feb. 20, 2008) perm. app. denied (Tenn. Aug. 25, 2008) (holding that the ordinance became
operative thirty days after the quo warranto action was dismissed based upon settlement of
the parties, relying on a previous version of the quo warranto statute).
From our review of Tennessee Code Annotated Section 6-51-122, we are also of the
opinion that the operative date of the annexation ordinance, rather than the effective date of
the annexation, is the crucial inquiry for purposes of whether the annexation moratorium
applies to bar the annexation in this case. First, the language of the statute concerns the
operative date of the annexation ordinance, rather than the operative date of the annexation.
Specifically, the statute provides that “no such ordinance to annex such territory shall become
operative during such period.” Tenn. Code Ann.§ 6-51-122(a)(1)(A). This limitation clearly
applies to ordinances that become operative during the moratorium, rather than annexations
that become effective during that time.
Further, the language of Tennessee Code Annotated Section 6-51-122(a)(1)(B),
stating that the prohibition in subdivision (a)(1)(A) will not apply in certain circumstances
is instructive as to the General Assembly’s intent in this case. Tennessee Code Annotated
Section 6-51-122(a)(1)(B) provides when the “municipality [has] formally initiated an
annexation ordinance” prior to May 15, 2014, the municipality may take steps to waive the
restrictions of (a)(1)(A), if the municipality would suffer “demonstrable financial injury if
such ordinance does not become operative prior to May 15, 2014.” (Emphasis added). This
language again emphasizes that the critical date is when the ordinance becomes operative,
rather than when the annexation takes place. Although this case does not concern the
exception outlined in subsection (a)(1)(B), this Court is not permitted to construe the words
in a statute in a vacuum, but must construe the language of a statute “if practicable, so that
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its component parts are consistent and reasonable.” In re Estate of Tanner, 295 S.W.3d 610,
certain annexation ordinances from becoming “operative”
between April 13, 2013 and May 15, 2014, applies to the
ordinances at issue. . . .
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The threshold issue for this inquiry is when did the
Annexation Ordinances become effective and operative—the
date they were enacted in 2009, the date the Agreed Order
became effective under Tennessee Rule of Civil Procedure 5810
. . . , or the “effective date” of December 31, 2013 referenced in
the Agreed Order. The law of Tennessee establishes the
“effective or operative” date of an annexation ordinance is held
“in abeyance” by the filing of a proper quo warranto action and
that the challenged annexation ordinance does not “become
effective or operative” until the date the quo warranto action is
resolved. Town of Huntsville, 269 S.W.3d at 61-62. Here the
quo warranto action was resolved by the Agreed Order entered
with the Circuit Court Clerk . . . . See Tenn. R. Civ. P. 58. Under
Tennessee law on that date the Annexation Ordinances became
“effective or operative.” See Town of Huntsville, 269 S.W.3d11
at 61–62. The entry of the Agreed Order resolved the quo
warranto action between the parties and caused the Annexation
Ordinances to become effective and operative under Tennessee
law, thereby vesting the parties to that action with a binding
resolution of all contested issues.
Rule 58 of the Tennessee Rules of Civil Procedure, states: 10
Entry of a judgment or an order of final disposition is effective when ajudgment containing one of the following is marked on the face by the clerkas filed for entry:
(1) the signatures of the judge and all parties or counsel, or(2) the signatures of the judge and one party or counsel with a certificateof counsel that a copy of the proposed order has been served on all otherparties or counsel, or(3) the signature of the judge and a certificate of the clerk that a copy hasbeen served on all other parties or counsel.
We note that the Tennessee Attorney General’s Opinion fails to consider Tennessee Code11
Annotated Section 6-51-103(d), which provides that when a timely quo warranto action is filed, the operativedate of the ordinance is not the date an order is entered sustaining the validity of the ordinance, but thirty-onedays after the sustaining order is entered. See Tenn. Code Ann. § 6-51-103(d) (“[A]n order shall be issuedsustaining the validity of such ordinance, which shall then become operative thirty-one (31) days afterjudgment is entered unless an abrogating appeal has been taken therefrom.”). This discrepancy has no effecton the present controversy.
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Tenn. Op. Atty. Gen. No. 13-71, at *2–3 (footnotes omitted). Thus, the Tennessee Attorney12
General likewise concluded that the crucial date for purposes of determining whether an
annexation is prohibited by Tennessee Code Annotated Section 6-51-122 is the date upon
which the annexation ordinance became operative, rather than the date of the actual
annexation.
The Appellees argue, however, that the Tennessee Attorney General’s Opinion should
not be entitled to persuasive weight because of a recent enactment of the Tennessee General
Assembly that changed the statutory landscape upon which this case must be decided. On
April 15, 2014, while this case was pending appeal, the Tennessee General Assembly passed
legislation amending Tennessee Code Annotated Section 6-51-102 to provide that
“Subsection (a) of this section prohibits any annexation by ordinance that is not both
operative and effective prior to May 16, 2015.” 2014 Tennessee Laws Pub. Ch. 707 (S.B.
2464), § 2. Thus, the Appellees argue that this recent enactment is evidence of the General
Assembly’s intent to forbid annexations by ordinance whether the ordinances become
operative during the moratorium, or whether the annexation becomes effective during the
moratorium. Under this interpretation of Tennessee Code Annotated Section 6-51-122, the
Appellees argue that the annexation of areas B1 and B2 of the Southwind Annexation Area
would be prohibited by the moratorium. This argument, however, is in error for several
reasons. First, the General Assembly specifically chose to delay the effective date of this
amendment to May 16, 2015. See 2014 Tennessee Laws Pub. Ch. 707, § 8 (“Sections 2, 3
and 4 of this act shall take effect on May 16, 2015.”). We “presume that the legislature says
in a statute what it means and means in a statute what it says there.” Rogers v. Louisville
Land Co., 367 S.W.3d 196, 214 (Tenn. 2012) ((quoting Gleaves v. Checker Cab Transit
Corp., 15 S.W.3d 799, 803 (Tenn. 2000)). Accordingly, by choosing to delay the effective
date of this amendment, the General Assembly expressed clear intent that this amendment
should not apply to the current litigation. See State v. Smith, --- S.W.3d ----, 2014 WL
From our review of the Attorney General’s Opinion, there appears to be some confusion as to12
the date the agreed order resolving the quo warranto action was filed. In five places, the Opinion recites thatthe agreed order was entered on April 30, 2012. See Tenn. Op. Atty. Gen. No. 13-71, at *1–3. In one place,however, the Opinion recites that the agreed order was entered on April 20, 2013. Further, the Opinion statesthat: “The quo warranto action was resolved by an Agreed Order that became effective on April 30, 2012,before the effective date of [Tennessee Code Annotated Section 6-51-122] [i.e, May 16, 2013] but duringthe time frame established by [Tennessee Code Annotated Section 6-51-122] precluding annexationordinances from becoming operative.” Tenn. Op. Atty. Gen. No. 13-71, at *2. However, the time frame forthe annexation moratorium is from April 13, 2013 through May 15, 2014. Tenn. Code Ann. §6-51-122(a)(1)(A). If the agreed order was, in fact, entered on April 30, 2012, it would have been entered wellbefore the “time frame established by [Tennessee Code Annotated Section 6-51-122] precluding annexationordinances from becoming operative.” Tenn. Op. Atty. Gen. No. 13-71, at *2. Again, this discrepancy doesnot alter our view that the Tennessee Attorney General correctly determined the crucial date for ascertainingwhether the annexation moratorium applies to a particular ordinance.
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2766674 (Tenn. 2014) (“Our primary concern is to carry out this intent without unduly
expanding or restricting the language of the statute beyond the legislature’s intended scope.”)
(citing Premium Fin. Corp. of Am. v. Crump Ins. Servs. of Memphis, Inc., 978 S.W.2d 91,
93 (Tenn.1998)). In addition, by its very terms, the above amendment applies to Tennessee
Code Annotated Section 6-51-102, the general annexation ordinance statute, rather than the
annexation moratorium statute. Further, it is unclear as to what subsection of Tennessee Code
Annotated Section 6-51-102 this provision applies, as the General Assembly deleted
subsection (a) of Tennessee Code Annotated Section 6-51-102 immediately prior to this